Attorneys for Douglas Carter ask for dismissal, claiming double jeopardy

PROVO — Douglas Carter and his attorneys officially asked the court to dismiss his case on Friday, claiming a second trial violates due process and would be considered double jeopardy.

Carter was convicted in 1985 of killing 57-year-old Eva Olesen in her Provo home and sentenced to death, but the 4th District Court and later the Utah Supreme Court vacated his conviction, citing prosecutor and officer misconduct. Carter was released on bail on Sept. 28 after 41 years behind bars, most of that time on death row.

He is still scheduled for a jury trial next summer, but prosecutors have said they would not seek the death penalty after DNA evidence did not match Carter's profile, further distancing him from the crime scene.

His attorneys, Neal Hamilton and Richard Gale, argued that if the misconduct that reversed his conviction was brought up during trial instead of decades later, there would have been a mistrial and he would not face a second trial. They argued that even if the misconduct is found after the trial, jeopardy should still apply and there should not be a second trial.

"Mr. Carter asks this Court to find that, under Utah's Constitution, intentional, material, misconduct by the State should result in dismissal, no matter when the misconduct is discovered," the motion says.

It explains that two witnesses in the trial later said police had threatened and pressured them into making untrue statements. Those witnesses had testified in the 1985 trial that they saw Carter just after the killing and that he told them he had killed a woman. Their testimonies corroborated a written confession Carter has maintained was written by someone else and he was pressured to sign.

"The state of Utah had its one opportunity to try Mr. Carter. Rather than fully and fairly prosecuting … (it) threatened, coerced and bribed witnesses to offer the testimony the state wanted, rather than the truth. … The state now seeks to benefit from its misconduct by subjecting Mr. Carter to a second prosecution, 41 years after the first. Utah's constitution ought to be interpreted to prevent this from occurring," the motion states.

Friday's motion said this case has a "rarely seen" level of misconduct which prosecutors knew about but still spent 40 years "fighting to preserve a death sentence" — violating "all principles of justice and fairness embodied in Utah's constitution." Another trial, the attorneys claimed, benefits the prosecutors, not Carter.

The attorneys said Carter's case shows there are no consequences for prosecutorial misconduct and prosecutors "enjoy absolute immunity" while in their official capacity.

Seven states have explicitly given defendants more protections against prosecutor misconduct, and Carter's attorneys argued that Utah should join them.

The attorneys also asked prosecutors for more information about other cases that investigators of Olesen's killing might have been involved with, as well as crimes that occurred within 2,000 meters of her home in the years around her death.

They requested all notes related to specific witnesses in Carter's trial, all records of interrogations of those witnesses, personnel files for those accused of misconduct, and documents related to the investigation of any other potential suspects in the case.

In the last hearing, prosecutors said they would take a look at the case over the next few months and decide how they want to move forward before the next hearing on Nov. 10.

Attorneys are also waiting on 4th District Judge Derek Pullan to rule whether the confession he claims he was coerced into signing would be allowed to be used by prosecutors in a second trial.

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